"In the instant case, unlike in Nsofor's case supra, upon the objection to the admissibility of the appellant's extra judicial statement on the ground that it was not voluntarily made, the Court ordered the conduct of a trial within trial. The proceedings of 7/10/2008 at pages 195 - 196 of the record went thus: "Court: Witness identifies statement.

Pros. Counsel: We apply to tender the statement in evidence, Def. Counsel: We are objecting to the admissibility of the statement. The accused said he thump (sic) print on the statement he gave to the Police. And in the statement that is sought to be tendered there is no thump (sic) print. But in the accused statement forwarded to us along with the proof of evidence there is a thump (sic) print. The statement that is sought to be tendered was made by him but he was tortured to make the statement. It was not voluntary.

Pros. Counsel: We are ready to conduct a trial within trial. Court: I order for a trial within trial."In his evidence in chief in the trial within trial, the appellant gave a detailed account of how he was allegedly tortured. He claimed that apart from being shot, he was cut on the buttocks with a pair of scissors. It is part of the Court's record that he showed the area on his buttocks to the Court. Under cross examination, he stated thus: "I did not make any statement to the Police at Karmo and Life Camp, I did not make any statement but I was forced to sign."(Underlining mine for emphasis) At that stage, learned counsel for the prosecution urged the Court to admit the statement in evidence since the appellant stated that he did not make any statement.

The statement was accordingly admitted in evidence and marked Exhibit A, thereby aborting the trial within trial. In the course of his judgment, the learned trial Judge noted that during his evidence in chief, the appellant (DW1) testified that when the torture became too much, he "signed the paper by thump (sic) print," whereas Exhibit A, which was admitted in evidence was signed not thumb printed. He was of the view that by his statement under cross-examination the appellant had retracted his confessional statement and that such retraction was not a bar to its admissibility.

In Nsofor's case (supra), learned counsel for the 4th accused objected to the admissibility of his statement on the ground that he did not make the statement sought to be tendered but was forced to sign. The learned trial Judge however admitted the appellant's statement in evidence without first conducting a trial within trial. The objection to the admissibility of the statement in that case was practically on all fours with the instant case. At page 313 F - H of the law report, the proceedings of the trial Court when the statement of the 4th accused (2nd appellant) was sought to be tendered is reproduced. A portion of thereof reads thus: Akinyele: The 4h accused says he did not make any statement and that he was forced to sign this one. Court: As I have said earlier, this is not a ground against the admissibility of a statement. Statement dated

5/3/93 is admitted and marked Exhibit E." (Underlining mine) Citing the dictum of Obaseki, JSC in Dawa Vs The State (1980) 8 - 11 SC 236 @ 258 on the inadmissibility of a statement not made voluntarily, Oguntade, JSC opined thus: "The trial Court ought to have conducted a trial within trial to determine whether or not the 2nd appellant voluntarily made Exhibit E. Rather than do this, the trial Court erroneously accepted that the challenge made to Exhibit E by 2nd appellant's counsel did not necessitate the conduct of a trial within trial. This clearly was a mistake. The Court below should have held Exhibit E inadmissible in the manner it was admitted."

Now, it is true that in the instant case, the learned trial Judge ordered the conduct of a trial within trial. It was however aborted in the circumstances already narrated earlier. The question is, did the evidence of the appellant under cross-examination amount to a withdrawal of his objection to the admissibility of his statement? Did it amount to a retraction, as held by the two Lower Courts? I have carefully examined the evidence in chief and cross-examination of the appellant at pages 199 - 200 of the record. I am of the view that the statement made under cross examination should not be read in isolation or out of context but in light of his evidence in chief. I do not agree with the two Lower Courts that it amounted to a withdrawal of his earlier objection. His statement that he did not make statements but was forced to sign what was being tendered supports his contention that he was tortured. As observed by learned counsel for the appellant, there was also before the Court, although not in the trial within trial, the testimony of PW2 to the effect that the appellant and his co-accused were taken to "the theatre" and tortured. These factors ought to have urged caution on the Court. Having commenced the trial within trial, I am of the view that the learned trial Judge ought to have concluded the proceedings and delivered a considered ruling on the admissibility of the statement. By abruptly terminating the trial within trial, the appellant was in the same position as if it had never been conducted at all. In the circumstances, I hold that the appellant's extra judicial statement, Exhibit A, was wrongly admitted in evidence and ought to have been expunged by the Court below. It is

hereby expunged from the record."

Per KEKERE-EKUN, J.S.C. IN OGU v. COP CITATION: (2017) LPELR-43832(SC)